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Judgment of 29 March 2019 - BVerwG 9 C 4.18 (uploaded on 29 January 2020)

Obligation of an organiser to pay fees for special police efforts made at a high-risk event

Headnotes

1. Fulfilling the tax liability, as determined by the ability to pay principle, does not entitle to free use of state benefits the provision of which is subject to specific attribution. Anyone making particular use of a public good (in this case state security precautions) for the purpose of making a profit, may in principle be charged a fee for this.

2. A provision of federal state law (here section 4 (4) BremGebBeitrG) which, in order to cover the additional expenses, imposes a fee on the organiser of a major profit-oriented event foreseeably requiring the deployment of additional police forces in territorial and timely connection with such event as a result of experience predicting acts of violence, is in principle consistent with the tax state principle (Steuerstaatsprinzip; article 104a et seqq. GG).

3. Such a fee, which is not claimed from the organiser as the person causing a disturbance of public security but exclusively as the beneficiary of an increased police presence, does not conflict with police law. However, in order to avoid an impermissible excess cover, one must avoid "double billing" to both the organiser and to the person causing the disturbance.

4. The organiser's fee is in compliance with article 12 (1) GG if, taking into account the nature of the event, such fee is regularly in a reasonable relation to the economic result that the organiser can achieve, also thanks to the increased use of police forces.

5. There is no need for a tax-financed deduction from chargeable expenses, even when taking into account the public interest in preventing threats, if the additional security effort is required exclusively as a result of a profit-oriented private event.

6. With respect to the requirement of specificity of the provision, a fee with the direct purpose of covering expenses does not necessarily require the fee rate to be determined in the constituent elements of the provision. Sufficient specificity may also be achieved by stipulating rules for the assessment of such expenses.

Judgment of 28 March 2019 - BVerwG 1 C 9.18 (uploaded on 28 January 2020)

Right of residence of a Union citizen's spouse despite termination of marital cohabitation

Headnotes

1. The derived right of residence of the third-country national spouse of a Union citizen entitled to freedom of movement pursuant to section 2 (1) FreizügG/EU in conjunction with article 3 (1) of Directive 2004/38/EC does not depend on the continued existence of marital cohabitation. To meet the requirement that the third-country national must accompany the Union citizen within the meaning of section 3 (1) FreizügG/EU in conjunction with article 3 (1) of Directive 2004/38/EC, it is sufficient following termination of marital cohabitation that both spouses are simultaneously resident in the host Member State (CJEU, judgment of 16 July 2015 - C-218/14, Singh - para. 54).

2. If a Union citizen leaves the federal territory following termination of marital cohabitation, the derived right of residence of the third-country national spouse under EU law expires (CJEU, judgment of 16 July 2015 - C-218/14, Singh - para. 58).

3. If the Union citizen later returns to the federal territory, the third-country national spouse remaining here can again claim a derived right of residence under EU law, even if the spouses continue to live apart.

Decision of 31 January 2019 - BVerwG 1 WB 28.17 (uploaded on 3 December 2019)

Headnote

The rules for the hairstyle of soldiers in no. 202 of the Joint Service Directive A-2630/1 do not have a sufficiently specific basis for authorisation in section 4 (3) second sentence SG which would meet the requirements arising from the principle that calls for a specific enactment of a statute. However, they may continue to be applied for a transitional period.

Decision of 10 July 2018 - BVerwG 2 WDB 2.18 (uploaded on 11 July 2019)

Headnote

The immunity of a Member of the European Parliament establishes a procedural impediment to conducting a disciplinary proceeding in the military disciplinary and complaints courts. This also applies to proceedings initiated prior to the acquisition of membership ("legacy" proceedings).

Decision of 25 April 2018 - BVerwG 9 A 16.16 (uploaded on 28 October 2019)

Request for a preliminary ruling regarding the new construction of the A 33/B 61 motorway feeder road at Ummeln within the boundaries of the city of Bielefeld

Headnotes

A preliminary ruling of the Court of Justice of the European Union (CJEU) is obtained on the following questions in accordance with article 267 TFEU:

1. Must article 11 (1) (b) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment - hereinafter referred to as: EIA Directive - be interpreted as meaning that a provision of national law is consistent with it, according to which a claimant who is not recognised as an environmental association is entitled to apply for the annulment of a decision due to a procedural defect only if the procedural defect has denied the claimant itself the opportunity - as provided for by statute - of participating in the decision-making process?

2. a) Must article 4 (1) (a) (i) to (iii) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, most recently amended by article 1 of Directive 2014/101/EU of the Commission of 30 October 2014 (OJ L 311 p. 32), - hereinafter referred to as: Water Framework Directive (WFD) - be interpreted as meaning that it does not only include substantive criteria for examination but, in addition, specifications regarding the regulatory approval procedure?

b) If question a) is answered in the affirmative,

must the involvement of the public pursuant to article 6 of the EIA Directive always relate to the documents regarding the assessment under water law in the aforementioned sense, or is it permissible to differentiate with regard to the time of the creation of the document and its complexity?

3. Must the term 'deterioration of the status of a body of groundwater' in article 4 (1) (b) (i) of the WFD be interpreted as meaning that a deterioration of the chemical status of a body of groundwater exists as soon as at least one environmental quality standard for one parameter is exceeded for project-related reasons and that irrespective of that, if the relevant threshold for one pollutant has already been exceeded, any additional (measurable) increase of the concentration constitutes a deterioration?

4. a) Taking into account its binding nature (article 288 TFEU) and the guarantee of effective legal protection (article 19 TEU), must article 4 of the WFD be interpreted as meaning that all members of the public concerned by a project who assert that the approval of a project breaches their rights are also entitled to bring judicial proceedings asserting breaches of the ban on the deterioration of water and the requirement for improvement?

b) If question a) is answered in the negative -

taking into account its objective - must article 4 of the WFD be interpreted as meaning that at least such claimants who maintain domestic wells for their private water supply in geographical proximity to the planned road are entitled to bring judicial proceedings asserting breaches of the ban on the deterioration of water and the requirement for improvement?

Judgment of 19 April 2018 - BVerwG 2 C 59.16 (uploaded on 10 September 2019)

Headnote

section 57 (1) BDG also covers final and binding criminal judgments of foreign courts. The binding effect contemplated by section 57 (1) second sentence BDG also ceases to apply in these cases if the findings made by the (foreign) criminal court are manifestly incorrect. This can be the case if the minimum standards required by the rule of law were not adhered to in the criminal proceedings. Such an interpretation is compatible with constitutional law, EU law, and the European Convention on Human Rights.

Judgment of 19 April 2018 - BVerwG 2 C 40.17 (uploaded on 15 July 2019)

Fire fighter's claim for compensation for excessive work in breach of EU law

Headnotes

1. Regular working time cannot concurrently be overtime; this is the case even if regular working time is unlawfully set too high.

2. A detriment within the meaning of article 22 (1) of the Working Time Directive (Directive 2003/88/EC) exists if an employer responds with a reprisal measure to an employee's refusal to work more than 48 hours per week, or if the factual and legal consequences of this refusal prove to be negative when viewed objectively in an overall assessment. Adverse circumstances for which the employer compensates otherwise - for example, with monetary compensation or compensatory time off - must be left out of consideration in this regard.

3. The duty to assert claims against the employer, which do not arise directly by operation of law (principle of prompt assertion), in writing, is met by the civil servant in any text form, including, for example, via email. The requirement of form under section 126 (1) BGB does not apply.

Decision of 12 April 2018 - BVerwG 3 C 20.16 (uploaded on 26 August 2019)

Whether airport users have standing to challenge an approval of the charging scheme

Headnotes

A preliminary ruling is to be obtained from the Court of Justice of the European Union to clarify preliminary questions of EU law in connection with the issue whether airport users have standing (section 42 (2) VwGO) to bring an action for the annulment of an approval of a scheme of airport charges.

The following questions on the interpretation of Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ L 70 p. 11) are referred to the Court of Justice of the European Union for a preliminary ruling:

1. Is a national provision which provides that the system of airport charges decided upon by the airport managing body must be submitted to the independent supervisory authority for approval, without prohibiting the airport managing body and the airport user from setting charges different from those approved by the supervisory authority, compatible with Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ L 70 p. 11), in particular article 3, article 6 (3) to (5) and article 11 (1) and (7) thereof?

2. Is an interpretation of national law whereby an airport user is prevented from challenging the approval of the charging scheme by the independent supervisory authority, but can bring an action against the airport managing body and can plead in that action that the charges determined in the charging scheme are inequitable, compatible with the aforementioned Directive?

Deportation order against a person posing a threat of Islamic terrorism

Headnotes

1. A deportation order does not expire following its enforcement (see BVerwG, judgment of 14 December 2016 - 1 C 11.15).

2. Judicial assessment of a deportation order that has been enforced must be based on the factual and legal situation prevailing at the time of the deportation.

3. A deportation order pursuant to section 58a AufenthG requires a threat situation determined on the basis of facts in which the risk of an act endangering security or a terrorist act resulting from the foreign national can evolve at any time and become a specific threat (see BVerwG, decisions of 21 March 2017 - 1 VR 1.17 and 1 VR 2.17).

4. The lawfulness of a deportation order made pursuant to section 58a AufenthG does not depend on the lawfulness of a ban on entry and residence issued at the same time.

5. A deportation ban under section 60 (1) to (8) AufenthG related to the state to which the individual is to be deported results in the (partial) unlawfulness of a deportation order made pursuant to section 58a AufenthG.

Judgment of 1 June 2017 - BVerwG 9 C 2.16 (uploaded on 7 March 2018)

Formally unlawful bicycle track construction in a special conservation area under the Habitats Directive

Headnotes

1. The right of an association to bring legal proceedings in the interest of the general public (section 2 (1) in connection with section 1 (1) of the Environmental Appeals Act (UmwRG, Umwelt-Rechtsbehelfsgesetz)) includes the right to institute an action for administrative intervention against a project built and operated without a decision on the required permission.

2. As a general rule, the discretion of the nature conservation authority to prevent the use of a bicycle track built without the required planning approval procedure (Planfeststellungsverfahren) pursuant to section 3 (2) of the Federal Nature Conservation Act (BNatSchG, Bundesnaturschutzgesetz), turns into a legal obligation where such use reasonably gives rise to concrete fears over considerable adverse effects in excess of the construction-related disturbance until completion of the subsequent planning approval procedure.

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